Royal Free NHS Foundation Trust v EF & Ors

This litigation before the Court of Protection presents the court with a stark choice in respect of a decision which falls to be made for the subject of the proceedings, EF (as he is anonymised in this judgment). He is a 44 year old man with Down’s Syndrome. He has been assessed (and the court has declared) that he lacks capacity to conduct these proceedings, therefore the Official Solicitor acts as his litigation friend. He has kidney failure and requires thrice weekly dialysis and medication to manage his phosphate levels. This treatment is provided by the applicant NHS Trust. The second respondent is his father. The third respondent is the local authority which exercises safeguarding responsibilities.

The stark choice to which I refer is whether the time has come for EF to be removed from the lifelong care of his father and their home and for him to be placed in a nearby supported living placement for the purposes of ensuring he receives a sufficient level of dialysis and regular medication. After having read and heard some detailed evidence I have determined it is in EF’s best interests to live and be cared for in a supported living placement for the purposes of ensuring he receives sufficient dialysis. In this short judgment I endeavour to set out my reasons for arriving at this best interests decision pursuant to section 4, Mental Capacity Act 2005 (hereafter “the MCA”).

At the final hearing of this matter, the applicant was represented by Ms Butler-Cole KC, EF by Ms Powell KC, and the third respondent by Ms Rowlands. All three represented parties agree EF lacks capacity to make decisions about his medical treatment, his residence and care. All three represented parties agreed it was in EF’s best interests to be conveyed to supported living for the purposes of receiving sufficient dialysis. I heard a pre-trial review in this matter on 4 December 2025. In anticipation of the pre-trial review I had directed NN to file and serve a witness statement setting out his case. He did not do so. He failed to attend the pre-trial review. I ordered him to attend the final hearing in person. I made an order (by consent) that EF was to attend his dialysis on the first day of the hearing and to receive support worker assistance on the second day. This was to ensure EF could be safely looked after whilst his father focused on the hearing. At the outset of the hearing on 17 December 2025 NN attended with EF. In the run up to the hearing he had missed some dialysis. Dr X was present at court and after speaking with EF considered he urgently needed to attend hospital to be treated for a possible infection and for dialysis. EF refused to go. I spoke to EF in court and urged him to attend hospital. He was resistant. NN then volunteered to take him to hospital in a taxi.

Given the need for urgent treatment NN then left with EF. EF was treated in hospital and NN was provided with a private room and was able to re-join the hearing by CVP. He sought an adjournment of the trial. The three represented parties opposed his application for understandable reasons. Given the eventful morning I determined to adjourn the hearing until 10 am on 18 December 2025. I was mindful of the demands on NN, his caring role, his status as a litigant in person and the sudden journey to the hospital. However, one of the witnesses, Dr T, was unavailable to give her evidence on 18 December 2025. I therefore provided NN with a short adjournment and resumed the hearing in the afternoon. He then questioned Dr T and at the conclusion of his questioning I adjourned the hearing until 18 December 2026. I am satisfied NN has received all the documents, position statements and bundles for this hearing by email in good time. For the avoidance of any doubt, I requested the applicant print him a copy at the hospital on 17 December 2025. On 18 December 2025 NN attended court in person with a hard copy of the hearing bundle. I am satisfied he has had every opportunity to put his case and has received a fair hearing.

EF’s kidney damage first came to light in October 2022 when he had blood tests to investigate ankle swelling. He was referred to hospital and a biopsy was planned, to determine whether there was a treatable cause, but EF did not attend appointments and the biopsy did not take place. Medication was prescribed to slow the progression of his chronic kidney disease, but it was apparently not given. Untreated, EF’s kidney failure progressed throughout 2023 and 2024, until in October 2024 he was admitted to hospital pursuant to a Court order. Investigations showed that he now had severe renal impairment and he was dialysed. He has required regular dialysis ever since. The proceedings were heard by Harris J in October 2024 and then by me sitting as a Tier 3 judge of the court in November 2025.

Dr X, consultant nephrologist, took over EF’s care in December 2024. In her first statement dated 22 September 2025 she set out in tabular form when EF had attended for dialysis, for how long, and when he had not attended from March to mid-September 2025. In short, he had missed many sessions and had not stayed for the full required time at many more sessions, with the result that his dialysis was chronically inadequate, putting him at risk of sudden death or other complications, including difficulty breathing, heart and peripheral vascular problems, acute confusion, damage to bones and blood vessels, and painful and/or uncomfortable skin conditions.

In her recent statement dated 9 December 2025 Dr X explained that if EF continues not to attend consistently for dialysis his life expectancy will be significantly reduced. She would not be surprised if he died within the next year, although nor would she be surprised if he survived for the next couple of years. If his dialysis was optimal, data suggests that he would be in a cohort of patients for which there is 55-70% survival at 10 years. If he were to have no dialysis at all, his survival would be measured in weeks.

EF has continued to miss numerous scheduled dialysis sessions, and has not stayed for the full four hours at any of the sessions he has attended, in spite of the Court’s order that his father, NN, must facilitate his attendance at the sessions. It was notable that on 7 October 2025 when Ms Hobey-Hamsher spoke to EF by telephone his breathing appeared severely laboured. Blood results from shortly before the pre-trial review showed that almost all parameters were outside the normal range and his potassium levels were said to have been life-threatening. The applicant envisaged needing to utilise forced retrieval procedures, which EF finds distressing, more frequently in future in order to preserve his life.

It is currently unclear what medication EF is taking. Support workers have indicated that they see NN giving EF his medication, but it appears that medication is left at the hospital by NN because he does not believe it is needed, and that prescriptions are not collected from his general practitioner.

NN did not serve a statement in compliance with the order of 8 October 2025. He did not serve a position statement in compliance with the order of 4 December 2025.

I can set out the evidence briefly as there is little factual dispute for me to resolve.

Dr X is a consultant nephrologist. She has treated EF. Her evidence notes that EF’s attendance at dialysis was initially good following the court proceedings in November 2024 but started to wane in April 2025. In June 2025 the forced retrieval plan was implemented (although once the secure ambulance arrived, NN agreed to take EF to hospital by taxi). In August 2025, it appeared that a further forced retrieval would be required, but NN and EF were eventually persuaded to attend hospital. Dr X’s witness statement, dated 22 September 2025 noted that:

“The run of missed sessions and shortened sessions is putting EF at risk of immediate complications and also mean that his dialysis has been chronically inadequate. Inadequate dialysis can cause immediate complications, for example sudden death from an electrolyte abnormality. In this instance there will be no warning sign.

It can cause excessive fluid accumulation, leading to difficulty in breathing, and eventually a respiratory arrest and death.

It can lead to tamponade (pressure from fluid around the heart) and death.

It can lead to chronic damage of blood vessels which will lead to heart problems and peripheral vascular problems.

It can lead to chronic build-up of toxins both acutely and chronically which can lead to acute confusion and chronic damage to the body and brain.

EF’s blood tests show very high levels of phosphate. This indicates poor compliance with dialysis and with his phosphate binder medications. High phosphate levels are driving hyperparathyroidism, with long term damage to bones and blood vessels. He is also at risk of

developing calciphylaxis, a painful and sometimes fatal ulcerating skin condition.”

Dr X’s further statement dated 9 December 2025 summarised the very poor clinical position. Her evidence is that EF could die at any time with no warning due to his non-compliance with treatment. She would not be surprised if EF died within the next year if things continue as they are at present, although he could survive for a couple of years. The chronic complications of under-dialysis would be expected to manifest over the next 12-24 months. Although it is impossible to be precise, her view is that EF is likely to live for a significantly longer period if he becomes compliant with medication and dialysis. There is no directly comparable data, but people who start renal replacement therapy at EF’s age have an unadjusted survival rate of 55%-70% after 10 years (although this includes people who will have received a kidney transplant in that period). If EF did not have dialysis at all, he would die within a few weeks.

Dr X notes that EF has never refused to be connected to the dialysis machine once at hospital – the problem is getting him to hospital three times a week, and encouraging him to stay for the full 4 hours. It is not feasible to provide regular dialysis under sedation or restraint, but short term physical or chemical restraint would be considered if there was a short and reversible problem that was preventing EF receiving dialysis.

Dr X gave very clear and helpful oral evidence. She was questioned by NN.

Dr T is a consultant clinical psychologist employed by the third respondent. She visited EF at his home with NN on two occasions, on 30 October and 13 November 2025. The picture that she painted is as follows: NN remains preoccupied with his bankruptcy and the death of his wife, EF’s mother, and continues to believe that EF does not have any kidney damage and does not require dialysis. He has entrenched mistrust of professionals. NN has considerable influence over EF’s views. EF appeared to have been coached in the responses to provide during the assessment. EF does not agree that he has a kidney problem and insists that he does not require dialysis.

Dr T set out a number of recommendations for ways to help EF’s understanding of his condition and need for treatment. She made clear that these are unlikely to be successful whilst he continues to be subject to his father’s influence and, indeed, suggests that it would be inappropriate to try:

On the other hand, if EF were to be accommodated away from NN, and have his contact with his father limited, Dr T made clear that there would be risks to his mental health. She explained that:

She continued::

She highlighted a major risk to his mental health:

Written questions were put to Dr T by the third respondent. In response in a written report she opined that:

Dr T also considers that if EF were to be moved into supported living accommodation this would be best achieved by a gradual increase in carer involvement and introduction to the placement over a period of a week, although she says that ‘the influence of his father would need to be managed.’

Dr T gave short helpful oral evidence and was questioned by NN.

A social worker in the employ of the third respondent, Mr Q, also gave evidence. He set out his best interests analysis explaining why EF should move into supported living. He provided a wealth of detail about the new placement. I need not set out those details because NN has not challenged the suitability of the placement, he just believes father and son should be together. It is a new placement. It is spacious with a garden. It has currently one other male resident. It is just over two miles from NN’s home. The care provider, Nationwide currently employs four Sri Lankan carers and two of them would be involved in EF’s care.The social work team consulted the manager of Nationwide to draw up a transition plan, contact plan and conveyance plan. The carers will introduce themselves and shadow his current carers over a period of two weeks, prior to any move. EF will be encouraged to view the property and stay overnight in the second week. The proposed transition plan sets out the plan for offering psychological support and preparing EF for the move. The provider will be apprised of the risks of self-harm and challenging behaviour, and will implement the mitigation plan, as set out in the statement filed on behalf of the local authority.

It is proposed that Nationwide will transport EF in their own vehicle. A conveyance plan was discussed with professionals on 15 December 2025 and sets out the plan to move EF in the least restrictive way if he refuses to get into the vehicle.

Mr Q gave helpful oral evidence. He was questioned by NN.

NN did not provide a witness statement but he agreed to give evidence. He spoke about his historical property problems and took time to explain that he had been at a solicitors’ office for some two hours and whilst there someone had changed the locks on his home. He had called the police. He blamed some of these difficulties on the Islamic Association of Sri Lanka. He explained he had worked for London Transport and his late wife had worked for Tesco. He gave some details about his late wife’s death. He struggled to explain why EF needs dialysis when asked by Ms Powell. He emphasised that he wanted a second opinion. He did not answer clearly when asked whether he thought EF’s treating clinicians were corrupt. He told the court he loves his son. He said he was 75 and was tired of all the trouble.

EF’s solicitor, Ms Hobey-Hamsher’s, attendance notes provide me with much helpful background detail about EF. He does not want to have dialysis in hospital. He does not understand what dialysis is, or why it is necessary. At times he has said that he does not believe that he is in kidney failure, or even that he is unwell, because, he says, he is able to eat and drink, run and jump around. He denied to Dr T that he had a kidney problem. He finds it boring being at the hospital for four hours three times a week and would rather spend his time in more enjoyable ways, such as watching football. He told Dr T that he wanted to have dialysis at home, although this is not an available option for him.

There is absolutely no suggestion that EF does not want to continue living, or that he has any understanding or belief that his inconsistent compliance with dialysis and other treatment is putting his life and health at risk. EF wants to continue to live with his father. At times, he has appeared to express tentative views to the effect that he might like to spend some time with support workers, but has been easily persuaded out of this view by his father.

The test for capacity is set out in sections 2 and 3 of the MCA as informed by section 1 and its proper application was clearly explained by the Supreme Court in A Local Authority v JB [2021] UKSC 512; [2022] AC 1322.

Best interests are determined by sections 1 and 4 of the MCA and by following the dicta of Lady Hale DPSC (as she then was) in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591. At paragraphs 18 and 22 the role of the court and its proper focus pursuant to the 2005 Act is identified:

The applicant’s position is set out by Ms Butler-Cole in her succinct and helpful position statement:

The third respondent’s helpfully clear position statement states:

NN opposes EF leaving his care or their home. He believes some form of conspiracy is at work which links his late wife’s death, financial corruption by the third respondent and the malign influence of the Islamic Association of Sri Lanka. He believes a father and son should live together. He wants a second opinion from another doctor.

The Official Solicitor’s carefully thought through analysis is set out by Ms Powell as follows:

The applicant Trust, the local authority and the Official Solicitor all submit that EF lacks capacity to conduct the proceedings, make a decision in respect of his medical treatment and to make decisions about whether to live with his father in their home or move to the supported living placement and to make decisions about contact with his father. NN told me for the first time in his oral evidence that EF can make these decisions himself. I am satisfied on the balance of probabilities that the three represented parties are correct. I find on the decision and time specific issues of litigation capacity; medical treatment; residence and contact EF lacks capacity to make those decisions in December 2025. The written evidence is clear and was not challenged by NN. Harris J made section 15 MCA declarations in respect of these issues on 1 November 2024. Nothing relevant has changed since. It is not necessary to recite further reasons. The court therefore has jurisdiction to determine where EF’s best interests lie.

This is a desperately sad case. NN has provided his son with a home and, as far as I can ascertain, a sociable life. EF is a devoted fan of a London football club. He regularly watches football games at stadia and on the television. He is a keen snooker player and plays at a club. He likes to visit the pub. He is described as very sociable. When he has attended court he has presented very smartly in a dark suit. Whilst I understand the home is rather drab and cluttered with legal papers, this is a not a case where absent the issue of dialysis and medication, the third respondent would have intervened to separate EF from his father. The best interests case has rather morphed into the wider benefits of supported living and the (arguably) more natural relationship of an adult son living in his own home and regularly seeing his father. The applicant is the Trust, and not the third respondent, because it is the failure of NN to secure EF’s dialysis and consumption of regular medication that has led to the application for him to be accommodated separately. Given EF’s strongly held wishes and feelings it is unlikely a court would have separated EF from NN if the issues of treatment for the failed kidneys had not arisen. It is not necessary for me to decide this issue as EF’s medical treatment is front and centre of this application.

Sadly it seems that NN is stuck in the past. In his oral evidence he was eventually persuaded to move on from discussing his property issues to tell me that his late wife died in his arms after paramedics were called to the home and resuscitation was not successful. It would appear, according to NN’s oral evidence, that some form of dampness or mould in the home the family were forced to move to contributed to her ill-health. NN told me some form of RESPECT or do not attempt resuscitation notice was placed in her medical records. He said he was not aware of that until after she died. It appears that NN links whatever property difficulties he had which required him to move from his former home to the illness that led to his wife’s death. It may be the case he mistrusts medical practitioners because of what he considers to be the deceit involved in the RESPECT form, although he told me resuscitation was attempted. This may or may not be part of his difficulty in accepting the need to bring EF three times a week for four hours of dialysis and to give him his three times daily doses of sevelamer, which helps to control phosphate levels. He also demonstrated what I considered to be delusionary or persecutory beliefs and made repeated reference to the Islamic Association of Sri Lanka which he believes has defrauded him in some way. He made various allegations of corruption or terrorism. It is obviously not for me to diagnose any form of mental health condition. I am not qualified to do so. However, it is my duty to ensure he has a fair hearing and I have wondered whether he does have difficulties and whether he has capacity to conduct the litigation. I do not conclude he lacks litigation capacity but it is clear he is vulnerable and the presentation of his case was impaired by some strange perspectives. However, he was able to question witnesses and he gave evidence and set out his case and what he wants to happen.

Whatever the cause of his opposition to regular and sufficient medication and dialysis, he is incapable of ensuring EF receives it. EF requires it. I entirely accept Dr X’s clearly given medical assessment that EF is currently at risk of sudden death because of the high phosphate levels in his blood. I accept her evidence that EF’s life expectancy is significantly reduced. I accept her evidence that EF’s quality of life is seriously impaired because of the symptoms caused by insufficient and infrequent dialysis, namely tiredness, itching and bloating. EF is living a very uncomfortable life. He is probably also negatively psychologically impacted by the ongoing conflict between professionals and his father and I am sure he is negatively impacted by these proceedings. It is likely his father talks to him about these issues causing his further confusion, distress and upset.

The best interests evaluation is clear: both the quality and the length of his life strongly weigh the best interests balance toward separation from his father to ensure he receives regular and sufficient dialysis and medication to keep him as healthy as possible. This is a life and death issue for EF and the importance of it cannot be downplayed. The fact that the court has tolerated a substandard regime since November 2024 is not a reason for it to continue. Every opportunity has been given to NN to comply. He has repeatedly given me promises he will take EF to dialysis as advised by Dr X. But he has not done so. I have very little confidence that his promises at this hearing would be kept. I do not accept they would be. It is now too late to give him another chance. He has had thirteen months to be assisted and helped to understand the issues. He has not been capable of doing that. I think it may well be the case that he has some sort of trauma from his wife’s death and his property issues and they are colouring his view of EF’s treatment. However the applicant and the third respondent’s professionals have taken steps to assist and help him but his mind is closed. The November 2024 order recorded that:

“NN confirmed to the court that he will accompany EF on hospital transport to dialysis sessions three times per week because his son’s life is important to him, and that he understands and agrees to the new arrangements for EF’s care and support at home.”

In addition I made a section 16 (5) MCA order as follows:

“NN must:

a.

Facilitate EF’s attendance at dialysis, including by supporting him to get into the hospital transport to travel to and from dialysis.

b.

Encourage EF to take his prescribed medication

c.

Not interfere with EF taking his prescribed medication.

d.

Call 999 and request an ambulance for EF in the event that EF shows signs of deterioration [ .. ]

e.

Provide food to EF in accordance with any advice given by a dietician.

f.

Not interfere with EF being given food in accordance with the advice of his

dietician.

g.

Not interfere in or obstruct the assessment of EF by the psychologist.

h.

Not interfere in or obstruct the attendance at the family home of carers

commissioned by the local authority to provide care to EF.”

In addition it was necessary for the court to authorise a retrieval plan which permitted the applicant’s staff to use force to convey EF to hospital in a secure ambulance should there be a clinical emergency. Despite all these measures and the passage of time NN has not complied. EF has been placed in a situation where his life is at risk. This court can no longer consent to this, as it is not in his best interests.

NN was told clearly that supported living may be required, as recorded in Recital C of the November 2024 order. It recorded:

The court has provided time and latitude to NN because it is recognised that there are likely to be emotional, psychological and possible even psychiatric consequences for EF of his separation from NN. He will live apart for the first time in his life. He will miss the daily contact with his father. He will miss the familiar environment of his home. He will be supported by strangers who are paid to be with him. He will be in an unfamiliar home around two miles from NN’s home. He will be required to adapt and understand a new home and routine and unfamiliar people. All this will be difficult for him. I factor into the best interests the risks of harm to his mental health. I readily accept Dr T’s evidence summarised above. I accept the concerns of Mr Q the social worker.

Ms Powell questioned NN on the issue of EF’s wishes and feelings. He told her that EF would rather properly attend dialysis than die. I accept that evidence. I consider EF enjoys much of his life, his sports and his social time. His wishes and feelings are to live. His wish conflicts with his wish to live at home and with NN. I have weighed these matters up carefully. His past and present wishes, feelings beliefs and values are all important. His desire for life must be considered holistically with his other wishes and feelings. But ultimately this is a case where reducing the risks of EF’s early death carry very great weight in the balancing exercise.

I have factored in EF’s Article 2 ECHR right to life and EF and NN’s Article 8 ECHR rights to respect for family life. As case law makes clear these rights have been factored into the section 4, MCA best interests analysis. Any interference with NN’s Article 8 ECHR right to respect for his family life with his adult son are fulsomely justified as being proportionate, necessary and in accordance with the law to keep EF alive and accordingly there is no violation of NN’s Article 8 ECHR rights.

The represented parties have spent much time drafting a transition plan, a contact plan and a conveyance plan. The Official Solicitor supports all three plans. The transition takes place gradually between now and 6 January 2026, when EF will move to his new supported living placement. I raised the risk of NN undermining the move over the weeks ahead. The represented parties accepted that risk but considered there were lesser risks to the gradual transition than that attached to the immediate move. Dr T supports the plan. The contact plan provides for EF to settle into his new home and for contact with NN to take place on a regular basis. There are some reasonable limitation on the contact. These are necessary and in EF’s best interests to assist him to build relations with his new staff and for him to settle. I also accept the conveyance plan but I do not authorise, as the parties agreed I should, the involvement of the police on the ‘second’ attempt to convey EF from his current to his new home. This would be frightening for him. It may then create an association for him between the police and his new home and it would be the worst possible start for this new chapter in his life.

I will also authorise the deprivation of EF’s liberty at his new placement. This is necessary and in his best interests to keep him safe.

The plan is fraught with risk. Ms Powell candidly acknowledges it may not work. But she is clear on EF’s behalf that the efforts must be made to provide him with the opportunity to secure for him a longer and better quality of life.

The third respondent submitted I should attach penal notices to the order and make an all ports alert. I declined to make these additional orders as they are not currently necessary. There is no proper evidence NN and EF are flight risks.

I have listed the matter for a half day review hearing on 14 January 2026.

I thank all counsel and solicitors for their assistance.